The Fight Against Obamacare Died On Election Night

If President Obama’s re-election makes one thing emphatically clear, it ought to be that the Affordable Care Act a/k/a ObamaCare is here to stay. The odds that Republicans were going to be able to repeal the law were always pretty thin anyway given that even a President Romney would still have to have dealt with a Senate either controlled by the Democratic Party or with a Democratic minority large enough to invoke cloture to stop a repeal bill from making it’s way through the Senate. With President Obama re-elected and a larger Democratic majority in the Senate, though, there is simply no way the law is going to repealed. Any effort by House Republicans to do so would be as futile and pointless as the thirty-three times they did so during the 112th Congress, all of which went absolutely nowhere after leaving the House. Like it or not Republicans, the Affordable Care Act is here to stay.

House Speaker John Boehner made it official Thursday: Obamacare isn’t going anywhere.

In an interview with ABC News, Boehner seemed to suggest the election ended any efforts to wipe out the whole law. When “World News” anchor Diane Sawyer asked if there would be any more votes to repeal the law, Boehner said “the election changes that” and “Obamacare is the law of the land.”

He said, however, that some parts of the law should still be on the table when lawmakers start negotiating a deficit deal.

Boehner’s office later walked the statement back somewhat by saying that modifications to the law should still be on the table in any upcoming budget negotiations, but the underlying sentiment is clear. Boehner is no dummy, he’s been around Congress long enough to know that the the whole “Repeal Obamacare” meme is so ridiculously dead at this point that it isn’t even funny. Of course, that doesn’t mean he can simply say that out loud at the moment, hence the reason that his office walked the statement back so quickly. His original point is correct, though. The Supreme Court has upheld the Constitutionality of the law, so outside of some outstanding challenges to aspects of the law not dealt with by the Supreme Court in June, the legal avenue is foreclosed. Thanks to the results of Tuesday’s election, the political avenue is foreclosed from now until at least 2017, at which point the law will be in complete effect and full repeal will become more difficult.

Two states with Republican governors — Virginia and Kansas — announced they won’t build health care exchanges in their states to implement the law. Instead, they’ll let the feds set up an exchange in their states — at least when they go live in 2014.

And even the hint that Republican governors might cooperate in some ways from the law proved how sensitive the subject still is.

On Thursday afternoon, the Republican Governors Association canceled a call in which state officials were supposed to assess where they stood on exchange plans and how they’ll approach the Nov. 16 deadline to submit a blueprint application. The call was scheduled, but then canceled after POLITICO reported it was happening.

(…)

The best hopes of resistance, for now, are coming from the states — where some governors are saying they may just not move ahead to set up the health exchanges. But even then, all that happens is that the feds would set up the exchanges for them.

Although Virginia showed interest in a state-based exchange as recently as this summer, Gov. Bob McDonnell and Attorney General Ken Cuccinelli said Wednesday they didn’t have enough federal guidance to make a decision ahead of the Nov. 16 exchange deadline.

“We’re going to pass through that [blueprint] deadline,” Cuccinelli said on Fox Business on Wednesday, but he left the door open for the state legislature to reopen the exchange issue next year.

And Kansas Gov. Sam Brownback, who last year sent back a $31.5 million exchange grant, on Thursday afternoon objected to the cost of setting up a state-based exchange.

“My administration will not partner with the federal government to create a state-federal partnership insurance exchange because we will not benefit from it and implementing it could cost Kansas taxpayers millions of dollars,” Brownback said in a statement, adding that he welcomed legislative debate on his decision next year.

It’s not just Republicans who are opting out of the exchanges. In Missouri, Democratic Gov. Jay Nixon — fresh off reelection — said a state-based exchange wasn’t realistic for 2014, the Kansas City Star reported. Voters in his state just approved a ballot measure blocking him from using an executive order to launch an exchange.

The exchange issue is actually an important one because there is a fairly strong argument that the PPACA, by its own language, only permits the Federal Government to provide subsidies to people who are participating in state-based exchanges. If a state fails to establish an exchange, then the law authorizes the Federal Government to step in and set up its own exchange for citizens of that state to use. However, there is no provision in the law that permits subsidies to be paid to people participating in Federal Exchanges. This means that the Administration would be faced with a serious problem if a large enough number of states failed to set up exchanges in that they would be unable to subsidize the people participating in those exchanges and there’s very little chance that a Republican House would agree to modify the law to authorize subsidies for Federal Exchanges, or otherwise fund such subsidies through a separate appropriation.

Beyond this, though, there really isn’t a whole heck of a lot that Congress or the Courts can do about the law. There are Court challenges pending to the Employer Mandate, the part of the PPACA that requires employees with 50 or more employees to provide health insurance to their employees, but I suspect that these challenges will see the same fate as the challenges to the Individual Mandate. Legislatively, the options are minimal at best. Absent the possibility, not remote, that the whole system may collapse due to the untenability of the exchanges, something that may not happen for years after President Obama has left office, the PPACA is, for the moment, here to stay. The GOP needs to recognize that fact.

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About Doug MataconisDoug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway.
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Comments

Hardest hit, ironically enough, will be seniors and young people. The former because it drains Medicare and because states can’t afford the Medicaid expansion and thus in droves will opt out. The latter will be crushed because now they’re all but completely unemployable. Obamacare raises costs on businesses. And if businesses have to pay higher costs either they won’t hire or to the extent they do hire they’re not going to waste time and effort training a poorly educated and immature generation. Doesn’t make sense. There are too many people out there with real experience who are willing to work on the cheap.

One of the major components of the Affordable Care Act is its relaxation of eligibility requirements for Medicaid. If you look at the map of states intending to expand Medicaid enrollment in Andrew Sullivan’s site

andrewsullivan.thedailybeast.com

you’ll see that most of the Republican states have no intention of doing so, even though the percentage of their populations without medical insurance is well above the national average. So the fight against Obamacare continues. It’s a disgrace, but it’s an inevitable consequence of our current state of class warfare.

Well, if the business community is too stupid to realize that “People should pay for their own health care. Oh, you can’t afford it? Screw you” is no longer a viable strategy and even more stupidly refuse to call for a single payer system, who’s really to blame?

The election was a referendum on Obamacare and the results a mandate to broaden it going forward. For those such as myself suffering under a seditious state govt elected on an anti-Obamacare platform and actively trying to prevent its residents from benefiting under the law (Fla) by refusing to set up an exchange the feds may be able to simply open up the govt employee health insurance plan for all as they have for those with pre-existing conditions.

An imposed one-size-fits-all solution is probably a better resolution of the situation than the pretend-efficiency of state based exchanges in the market for health care – a market that for obvious reasons is not amenable to efficiencies ordinary “free market” competition brings to other markets if only because the customer will pay anything for his life.

It doesn’t matter if Boehner sees the writing on the wall with Cassius Cantor as Majority Leader.

Republicans have shown a strong facility for childish rebelliousness (the “Democrat Party” label at every opportunity, for example). I can’t believe anyone who has paid attention to the party since the Clinton era could possibly imagine adult behavior when faced with governance against their ideological wishes.

Nonsense. Combat tactics. Ending Obamacare was really a bridge to far anyway. But now that Obama will own it lock, stock and barrel, the tactic now is to see everyone feels the impact of Obamacare very personally. Grab ahold and give the implementation a shove rather than pushing back. While, if possible, the Republican House should seek to end the “waivers” forcing those who thought they’d bought favor back into the deep end of the pool. Bureaucrat discretionary waivers invite corruption, undermine the rule of law, and that is how the repeal of waiver authority should be pushed.

JKB is correct – the waivers are terrible policy and enabled certain large employers (I’m looking at you burger chains) to comply with the insurance mandate with a facade of coverage that for ex pays only minor medical (Caps at $10K). I’m not certain the law allows waivers after 2013. Are you sure they’re allowed even after then?

I used to argue at Dave Schuler’s site that the important thing, what mattered about Obamacare, is that it defined health care coverage as a right. That’s still my position.

The details, the fixes, the alterations will all exist under the assumption that American citizens – like the citizens of every other developed nation – have a right to health care. Could Obamacare be improved? Well, duh. Policies are never perfect, they’re generally a mess, especially when freshly-minted. The principal is what matters here, we won on that principle, and it will not now be undone.

employers will just start dropping workers hours so they no longer qualify for benefits, ironically they’ll hire more part-timers to compensate (no pun intended). the fed. gov’t can’t outsmart the private sector, just doesn’t happen. we know who’ll get stuck paying for it, the middle class as usual.

I’m sure some employers will drop some employees to part time. That’s what makes a single payer system so much more economically efficient. Think about it. It completely removes health care management from an employer’s list of worries.

And, with cost controls, as in many OECD countries, it delivers massive savings.

… I’m really tired of the fatalism that we can’t do as good as Europe, because
we aren’t Europeans (kicks dirt).”

You might want to revisit your quasi-religious faith in the cleverness of the private sector in light of the fact that your brilliant private-sector super-businessman candidate ran an incompetent, outdated, clumsy and deluded campaign.

The waivers were always temporary. They expire on January 1, 2014 when several other major components go into effect (eliminating exclusion based on pre-existing conditions, health care exchanges, subsidies, mandate, etc.).

Also, they stopped granting waivers in September 2011.

And they were not terrible policy. They were a necessary feature of a pragmatic approach to healthcare reform. It’s a messy process because it has to be. If we didn’t want a messy process, we would have had to pass single-payer.

Hardest hit, ironically enough, will be seniors and young people. The former because it drains Medicar

I’m sorry but this bit is just freaking false. Reducing, over time, the premium paid to MCOs to privately manage Medicare patients does NOT negatively impact Medicare at all. If anything, it strengthens Medicare through the various pilots, like ACOs and bundled payment initiatives.

When will conservatives stop having to rely on lies and get back to reality?

@Rafer Janders: You realize that single-payer will be paid for by taxes, right? Which means government will inevitably raise business taxes, right? So that costs will increase for businesses, right? So that single-payer won’t fix the problem…right?

Single payer could fix the problem because costs would be controlled by the single payer. We should see some cost increase containment as a result of getting millions more people in the pool (and hopefully more for a number of other reasons such as reduced use of emergency rooms, more access to preventative care, etc.). However, it would be very easy to do it across the board much faster with a single payer system. When you control the entire demand side with a single entity, supply has to do what you say, plus the elimination of profit-based insurance would instantly and significantly reduces costs.

Actually, it does completely fix the current problem, as responsible businesses that provide health care won’t be at a disadvantage if their competitors don’t provide it. Single payer is likely to be more efficient than our current system as well, so the overall growth in health care costs should improve.

A big part of Obama’s second term will be implementing Obamacare and setting up exchanges for those states that will abdicate their responsibility to do so. Ezra Klein swears up and down that the exchanges will be the most popular and important part of Obamacare. Hope he’s right

My tinfoil hat opinion is that in congress there are some who passed the law wanted it to fail anyway to make an argument for a complete government take over and move to single payer.

That said-the people who probably are most in need-those people who work as low skilled labor in mostly service industry jobs will find themselve shifted to part time work. Probably one of the biggest gaping holes in Obamacare is that nobody actually thought about this when crafting the law.

My former employer dropped all of the non certified staff and janitorial staff to part time hours in order to avoid covering them for insurance. It also had the added benefit of removing sick time, holiday pay and personal days. Many service industry jobs are already shifting their work force to part time hours.

I am also willing to bet a lot of industries will shift some work to contract work to avoid having that person counted as part of their work force to avoid requirements kicking in when they hit the 50 employee threshhold.

I suspect over the next few years, unless congress does something to deal with this problem, that many people already part of the working poor will likely be working 2 to 3 part time jobs rather than 1 full time job with the occasional part time one on the side.

I suspect many young, college graduates will be SOL when it comes to finding employment. Which will probably bring on the student debt collapse sooner than later.

My former employer dropped all of the non certified staff and janitorial staff to part time hours in order to avoid covering them for insurance. It also had the added benefit of removing sick time, holiday pay and personal days. Many service industry jobs are already shifting their work force to part time hours.

This was occurring before Obamacare and is pretty much evidence we needed to reform healthcare. Companies have been dropping benefits for a long time, they are just now using Obamacare as an excuse, which no one should take seriously.

In addition to that (I had to up vote you … sorry … ;p), there is one other annoying fact that Washington DC keeps forgetting:

The Laws of Economics are not subject to the Whims of Politicians.

We cannot afford to keep spending what we’re spending(1). That means Entitlements have to go down(2). So, which entitlements are going to get gutted?

While it’s not guaranteed by any stretch of the imagination, my money is on “the entitlement that isn’t even being funded yet”.

1 Most economists — both sides of the isle — agree on that.
2 On this too.

Last I checked, “Entitlements” were more than 50% of the federal outlay and more like “well over 90%” if you include Unfunded Obligations. If those numbers are even remotely correct, you could eliminate all other Federal Spending and still need to cut Entitlements. Of course they include SS & Medicare in that, which is another can of worms altogether.

Single payer could fix the problem because costs would be controlled by the single payer. … When you control the entire demand side with a single entity, supply has to do what you say, plus the elimination of profit-based insurance would instantly and significantly reduces costs.

Doesn’t work — not even in Europe.

One thing no one seems to take seriously is the impact of the FDA in this country. And the amount of (hyper expensive) medical research done in this country. PPACA makes those two things worse — not better.

@John D’Geek: Google “It’s the prices, stupid” to see what Uwe Reinhardt and other medical economists say on this point. The more powerful the buyer, the lower the price. In the US Medicare pays less than Blue Cross and Blue Cross pays less than private individuals when buying vaginal deliveries or appendectomies, just as Walmart pays less for the milk it sells than individually owned convenience stores. The CBO accepts this analysis, and I don’t know of any any economists who dispute it.

@David M: expenses on the rise and it’s an easy scapegoat. i doubt if healthcare costs will drop since there’s a requirement to have it now, not like they ever drop anyway. almost off topic but a few years ago i had a little fender-bender and went to the er, they asked about insurance and i said i had none as the other guy was paying (i omitted that too)
they gave me x-rays, a splint and some meds at no initial charge. got a bill for about $300 a week or 2 later- unreal. it would’ve been close to $2k if i said i had insurance. my ex-wife does that too, she doesn’t have insurance and just tells them up front, pays next to nothing for basic services.

@mantis: I thought the waivers were temporary but wasn’t sure. To the extent waivers allow continued life for near useless “micro med” policies however IMO it’d be bad policy from the health and the consumer protection perspectives.

@David M: “This was occurring before Obamacare and is pretty much evidence we needed to reform healthcare. Companies have been dropping benefits for a long time, they are just now using Obamacare as an excuse, which no one should take seriously”

It’s also pretty much evidence that we need to reform labor laws. Corporations have been abusing workers in all sorts of new and profitable ways for years, knowing that a bad labor market and a “businesses are all good” Republican mentality would continue to protect them from any kind of regulation. Time for the Dems to step up.

And they do so through charitable donations and higher prices on those who do pay. And they are only required to provide life saving treatments not treatment until no more cure is possible. Quite different from a right to healthcare would you not say?

So please, how do you ensure that someone’s right to healthcare can be satisfied without forcing someone else to give up their right to choose not to provide that healthcare?

@stonetools: I am looking very much forward to guaranteed issue. I’ve had a very good individual plan since I COBRA’d 10 years ago. 18 months after Cobra, my plan offered a Cobra conversion. Miraculous! Many companies do not offer a post-Cobra option, but my (former) employer did opt for that addd-on. So I’ve been paying an ever-increasing premium for quite a good plan. But I’m stuck with it.

I don’t think I could take this MN plan with me if I wanted to move. I can’t add a partner. I feel well covered, but I pay about $5,000 a year for it.

If I could go on the private market and get a better deal now, I might. But my partner went through hell getting an individual plan after leaving his company (no Cobra conversion there) and his grad school plan was awful AND expensive. He managed to get in, but I’m fairly sure with my history – nothing serious, but one has to be nearly Men’s Health magazine perfect to get underwritten.

So it was a big deal that Minnesota flipped its legislature. Now we have a Governor and lege that will move forward on a state-run exchange. This is a good thing.

As to states that opt for a Fed exchange not getting subsidies, I can imagine the screams when folks find out that 1) people in the ‘socialist’ states get much more affordable insurance and 2) huge federal transfer payments only go to select states.

My hope is that people in the unsubsidized states go visit their congrescritters with pitchforks when they figure out they’re being ripped of because of Tea Party LIBERTY! that ‘s why.

I did not say single payer was slavery. I said if healthcare is a right. then that implies a requirement that another perform. That some will provide some level of care now for the offered pay does not alter that one person’s right to healthcare means another is obligated to perform, i.e., enslaved,

That some will provide some level of care now for the offered pay does not alter that one person’s right to healthcare means another is obligated to perform, i.e., enslaved.

That’s egregious nonsense and you know it. If single-payer health care doesn’t work for you, lets just create a completely socialized medical system. That will provide health care to everyone and enslave no one. And people wonder why no one takes conservative proposals seriously, their policy discussions are at a 3rd grade level at best.

This has been one of the better recent examples of the conservative closed information feedback loop, Romney really was the candidate for the GOP. You’re completely delusional to think for a second the country will do anything but laugh at a candidate for office (or anyone) objecting to providing health care because it’s slavery.

I did not say that providing healthcare is slavery. I said that if healthcare is a right, an enforceable right, then it requires the enslavement of someone else to satisfy that right. The difference from the inalienable rights is that they didn’t require action by anyone else only inaction. You have a right to free speech but not to be listen to. But for someone to get the healthcare that is their right, someone else must either pay for it and/or perform it. That you can’t understand this difference is disturbing.

And if healthcare is a right, how come there will be a board that will decide what healthcare you may receive? Not much of a right when some bureaucrats decide what you can and can’t have to satisfy that right.

But I understand. Logic is not the Left’s strong suit. But amorphous promise are. That is why I advocate turning into the torpedo and closing the distance on Obamacare. Push it to its limits now rather than creeping up over years.

Less than a week after the election and all we hear is new taxes, higher taxes, more taxes!
What about this estate tax? I don’t understand. I work hard and would like to leave a little for our children. I have already paid tax on it at least once. Why should it be taxed again?I am not talking about a huge windfall here. Ok, maybe I can just go ahead and sign everything over to our children or set up some kind of trust fund. Any good web sites for how to do this so that they will not have to pay the government even more tax on my money after I am gone? What’s next? Taxing my parents’ cemetery plots? Government: get your hands out of our pockets!

Less than a week after the election and all we hear is new taxes, higher taxes, more taxes!
What about this estate tax? I don’t understand. I work hard and would like to leave a little for our children. I have already paid tax on it at least once. Why should it be taxed again?I am not talking about a huge windfall here.

The estate tax doesn’t take effect unless you’re leaving your children several million.. The GOP likes to scare people with it, but almost no one pays it.